GIRDHARILAL Vs. BALCHAND

JUDGEMENT

(1.) This Second Appeal filed under Section 100 of the Code of Civil Procedure was admitted on the following substantial question of law:-

(2.) Brief facts of the case arc that the plaintiff/appellant filed a suit for mandatory injunction as well as for permanent injunction saying therein that there is one passage exists between the houses of the plaintiff/appellant and the defendant / respondent towards the north side and the defendant has closed it by raising construction of 'Otla' thereon. Therefore, decree for mandatory/permanent injunction he granted against the respondent and he be directed to remove the Otla and also be restrained from closing the aforesaid 'gali' and restraining the plaintiff to use it, as it is a part of his easementary right, which he is using for the last 20 years.

(3.) Trial court found that the plaintiff has failed to prove his easementary right over the .aforesaid 'gali' and found that no case is made out for infringement of his easementary right and dismissed the suit. This finding is affirmed by the lower appellate court in appeal. It was submitted that though the lower appellate court has found the existence of such a passage between the two houses, but was of the view that the appellant has failed to prove his easementary right over the same and dismissed the appeal.